Federal Judges: Employer Friendly or Worker Hostile?

Federal Judges: Employer Friendly or Worker Hostile?

Bloomberg law recently surveyed how federal judges in U.S. District Court for the Eastern District of Wisconsin rule on employment discrimination cases.

The survey indicates the four judges dismiss most employment discrimination cases long before they ever reach a jury pursuant to employer motions to dismiss or for summary judgment.

According to Bloomberg:

  • Employment lawsuits are dismissed by Eastern District of Wisconsin judges shortly after they are filed 40.5 percent of the time. Only six in 10 employment cases proceed to an exchange of evidence and pre-trial motions.  In a motion to dismiss, the employer argues the lawsuit is baseless.
  • The judges threw out 54.5 percent of the surviving employment lawsuits pursuant to a motion for summary judgment on the eve of trial, after evidence was exchanged by the parties, This type of motion argues there is no material fact in dispute and the plaintiff has no chance of winning a trial. The judge effectively decides the case, foreclosing plaintiffs from examining witnesses or presenting evidence before a jury.

Why are employment discrimination lawsuits dismissed at a higher rate?

Continue reading “Federal Judges: Employer Friendly or Worker Hostile?”

Posted on Categories EMPLOYERS, FEDERALTags Bloomberg Law, Judge Lynn Adelman, U.S. District Court for the Eastern District of WisconsinLeave a comment on Federal Judges: Employer Friendly or Worker Hostile?

EEOC “Leadership” Says No Need for Code of Judicial Ethics

EEOC “Leadership” Says No Need for Code of Judicial Ethics

The EEOC has defended  the fact that it does not require EEOC judges to follow any code of judicial ethics.

In response to an ethics complaint, EEOC Associate Legal Counsel Carol R. Miaskoff ruled last month that EEOC judges are mere attorneys and not judges at all. “Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.

EEOC spokesperson Christine S. Nazer said Friday the “EEOC leadership feels its judges should be fair, impartial, and follow the law, and all evidence suggests that this is exactly what happens in our federal sector decision-making process.”

Nazer said Acting EEOC Commissioner Victoria Lipnic declined to answer questions,  such as the following:

  • Is Miaskoff is correct? Her ruling appears to be contrary to the ABA Model Code of Judicial Conduct for Federal Administrative Law Judges  and the American Bar Association’s Model Code of Judicial Conduct.
  • What about the evidence showing that EEOC judges are not fair or impartial and  do not follow the law in cases involving  age discrimination in hiring brought against federal employers.

Continue reading “EEOC “Leadership” Says No Need for Code of Judicial Ethics”



The EEOC claims its judges are not required to follow any code of judicial ethics, which is the equivalent of saying that EEOC judges don’t have to be fair and impartial or to even follow the law.

What is the EEOC afraid of?

There is evidence that EEOC judges treat complaints involving the Age Discrimination in Employment Act of 1967 dismissively  when compared to complaints filed under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. However, the substantive prohibition against discrimination is the same in both the ADEA and  Title VII. Both laws make it illegal “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” because of that individual’s protected status.

Yet, the EEOC does not treat both laws the same. Last year,  EEOC Administrative Judge Daniel Leach and Carlton M. Hadden, the director of the EEOC’s Office of Federal Operations, ruled in two age discrimination cases that federal employers can ignore objective qualifications and base hiring decisions on subjective factors like poise and cultural fit.

In 2015, the EEOC prosecuted Abercrombie & Fitch for failing to hire a Muslim American woman who wore a head scarf.

Leach, Hadden and the EEOC  did not cite any legal authority for holding that employers can ignore objective qualifications, a theory that is anathema to published EEOC policy and federal case-law. It also  is inconceivable that such a holding would be made in cases involving discrimination on the basis of race, sex, religion, color and national origin. Clearly, the EEOC treats age discrimination as a secondary, lesser offense.

One of the two age discrimination decisions in question was actually cited as a precedent to follow by Hadden and the other was made public by the complainant.  There could be many more such decisions hidden behind the EEOC’s out-sized wall of secrecy.

In one of the  cases, Carlton upheld Leach’s dismissal of the complainant’s retaliation claim, completely ignoring undisputed evidence that Leach’s ruling was based upon an unambiguous error of fact.  In both cases, the EEOC judges ignored evidence of  misconduct by the federal agency defendants.

The EEOC claims disingenuously that its “Administrative Judges”  are not judges but mere attorneys.

There is no real question that EEOC judges are required to follow a code of judicial conduct.

The American Bar Association passed a Model Code of Judicial Conduct for Federal Administrative Law Judges in 1990 that says a federal administrative law judge “should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and the impartiality of the administrative judiciary.” There is no footnote exempting EEOC judges from this requirement.

The ABA also passed the ABA Model Code of Judicial Conduct, which was amended in 2010. This code applies to “anyone who is authorized to perform judicial functions, including … a member of the administrative law judiciary.” This code of conduct requires judges to perform the duties of judicial office “impartially, competently, and diligently.”

But even if the EEOC is not technically required to follow a code of judicial conduct, why doesn’t it anyway?

The EEOC contends that an unsatisfied party can file a federal lawsuit if unhappy with the outcome of EEOC proceedings but this is not a realistic or viable option for older workers or anyone else who has invested years and scare resources on EEOC proceedings. Just as importantly, it represents a complete waste of taxpayer dollars.

The federal government is the United States’ largest employer. Thousands of job applicants and employees file claims of discrimination every year. How can the agency charged by Congress with enforcing our nation’s civil rights argue with a straight face that EEOC judges ares not required to follow judicial ethical rules that are followed in every state and federal courthouse in the nation?

Federal Courts Waste Taxpayers Dollars & Thumb Their Nose at Taxpayers

Federal Courts Waste Taxpayers Dollars & Thumb Their Nose at Taxpayers

The vast majority of Americans are effectively locked out of federal courts because they have no money and the “system” is almost intentionally hostile and  un-navigable for lay people.

Yet U.S. courts are more than willing to spend endless hours and unlimited taxpayer dollars on cases where the guilt is patently obvious if the parties have “deep pockets.”

The system evolved this way because there is no citizen-input into the process, which is shrouded in secrecy, and the U.S. Congress fails to exercise its limited oversight in approving the federal judiciary’s budget.

The insiders -lawyers – are uncritical because they profit when they alone hold the keys to the courthouse. Employment lawyers who represent workers routinely charge $400 an hour, despite a 2017 survey finding that 57 percent of Americans have less than $1,000 in their savings accounts. 

Lawyers also don’t want to alienate federal judges who have almost unlimited power, no real accountability, and lifetime tenure.

It is long past time for the leadership of the U.S. court system to acknowledge the arrival of the 21st Century. Federal courts are desperately in need of reform to make the system usable and friendly to American consumers.

Federal courts are in desperate need of reform.

Continue reading “Federal Courts Waste Taxpayers Dollars & Thumb Their Nose at Taxpayers”

Posted on Categories CULTURE, EEOC, FEDERAL, LEGAL2 Comments on Federal Courts Waste Taxpayers Dollars & Thumb Their Nose at Taxpayers

The Problem with Federal Judges Who Bully

The Problem with Federal Judges Who Bully

The case primarily involves age discrimination but includes a sex discrimination claim.

The sex discrimination claim gave rise to a venue dispute involving where the lawsuit could be filed.

The federal government said the case had to be transferred from Arizona to Nevada because of a special venue provision in Title VII of the Civil Rights Act, the federal law that prohibits sex discrimination.

The plaintiff, an Arizona woman who is proceeding pro se, argued in court papers that the case should be moved to California, which would be more convenient for her and would not inconvenience the federal government. Alternatively, she  asked to amend her complaint to drop the Title VII claim that gave rise to the venue dispute so the case could remain in Arizona.

The presiding judge was U.S. District Court Judge James A. Soto, 67, a Hispanic who was appointed to the bench in 2014 by former President Barack Obama. The job of a federal judge is to follow the law. Federal judges are paid more than $200,000 a year to put aside their personal bias and prejudice and to be fair.

It was not complicated. Federal courts have ruled that venue should be interpreted broadly in civil rights cases because Congress intended to afford citizens full and easy redress of grievances. Federal rules encourage judges to”freely” grant leave for a Plaintiff  to amend her complaint, barring evidence of ill motive.

Judge Soto agreed that venue was proper in both California and Arizona (if Plaintiff dropped the conflicting sex discrimination claim). However, he ruled, without elaborating, that “judicial efficiency dictates that a transfer to the District of Nevada is in the interest of justice.” Continue reading “The Problem with Federal Judges Who Bully”

The EEOC’s Quiet Transformation to Business Service Provider

At one time, the EEOC was seen as an opponent of big business, a champion of powerless workers who were denied equal rights in the workplace.

Not so much today.

Is it a coincidence that the EEOC recently got its first big budget increase in years and was applauded by U.S. Chamber of Commerce  – no friend to workers – for focusing on “compliance assistance” rather than enforcement and litigation?

In the past decade, the EEOC has quietly shifted its emphasis away from litigation to “compliance” through education, training and mediation.

Bloomberg recently reported that Janet Dhillon, the nominee to chair the EEOC, and Sharon Fast Gustafson, the nominee to serve as EEOC general counsel, hope to focus more energy on conciliation and mediation in the years ahead. Since the pie is only so big, this  means the EEOC will focus even less energy on litigation, which has been declining for years.

One can see why the EEOC’s new focus benefits the EEOC,  which has endured withering criticism in recent years from members of the U.S. Congress and the federal courts for filing lawsuits against large employers. It is unlikely that anyone  in Congress or the federal courts will mourn or even notice the EEOC’s absence. Yet, the EEOC’s shift in focus is not likely to address systemic and/or intentional discrimination by employers.

The EEOC acknowledges that it is responsible for “enforcing” the nation’s employment discrimination laws. The dictionary definition of enforcement is “the act of compelling observance of or compliance with a law, rule, or obligation.” Mediation does not compel compliance with the law except in the sense that it is  a free and painless exit strategy for companies that have engaged in illegal discrimination.

The EEOC’s mediation program, which began in the 1990’s, allows discriminators to avoid the expense, notoriety and  potentially catastrophic risk of a  court proceeding. Mediation is confidential so employees back home and the general public are kept in the dark.  And it’s free. Continue reading “The EEOC’s Quiet Transformation to Business Service Provider”

Trump’s Revolving Door May Hit Him in the Behind

Former Secretary of State Rex Tillerson

It does not speak well for the employer when the employer fires multiple employees who were handpicked for their positions.

In the past year, President Donald Trump has fired a long list of high-ranking appointees, including Secretary of State Rex Tillerson, advisor (and reality TV star) Omarosa Manigault, Chief Strategist Steve Bannon, FBI Director James Comey, numerous members of Trump’s White House communication’s staff, etc.

Employers are  at least partly responsible when an employee does not succeed in a job.

Continue reading “Trump’s Revolving Door May Hit Him in the Behind”

Contrary to Pres. Trump, Happy Days Are Not Here Again

President Donald Trump’s State of the Union address this week did little to reassure American workers or retirees that happy days are here again.

Workers today are subjected to working conditions that create health endangering stress and lead to incivility, bullying and worse. They can be and often are fired without cause. Age discrimination in hiring is so prevalent that astute job seekers over the age of 30 omit any indicator of age from their resumes.

Meanwhile, 53 million Americans are “independent workers” – about 34 percent of the total workforce. It is predicted that most American workers will be freelancers in 2027. Robots have taken over manufacturing jobs and now threaten to replace lawyers, radiologists and software designers, among others. Not only do freelancers lack job security, but they get lower wages and no benefits or pensions.

Trump ignored ‘independent’ workers and retired Americans and threatened federal employees.

Continue reading “Contrary to Pres. Trump, Happy Days Are Not Here Again”

EEOC Acting Chair says it’s time for “thorough Review” of Age Discrimination in Employment Act

EEOC Acting Chair Victoria Lipnic said Thursday the Age Discrimination in Employment Act of 1967 – which turns 50 Friday – “deserves a thorough review to insure it is meeting the needs of today’s workforce.”

In addition, she said, “We need a cultural awakening. Instead of  negative expectations, how about recognizing the positives? Age diverse teams and cross-generational mentoring produce real benefits for both workers and employers.”

“Utilizing the talent of everyone, regardless of age, is good business. This is talent that our economy cannot afford to waste. . .” – Lipnic

Lipnic was not specific about why she believes the ADEA deserves a thorough review; how the ADEA may be failing to meet the needs of today’s workforce; and whether the ADEA will indeed get the thorough review that it deserves.

Lipnic focused on what she characterized as the ADEA’s success. She noted the ADEA was adopted in 1967 when “age discrimination was blatant. Workers over age 45 were barred from many jobs based solely on their age and mandatory retirement was commonplace for those in their 60s. Since then the ADEA has largely stopped openly discriminatory practices. But age discrimination is still too common and often accepted.” She said older workers continue to confront negative stereotypes and that age discrimination deprives them of their dignity and financial security.

But is the ADEA a success?

Others would point to evidence that age discrimination remains blatant, epidemic and unaddressed 50 years after the ADEA’s adoption.

Continue reading “EEOC Acting Chair says it’s time for “thorough Review” of Age Discrimination in Employment Act”

Senate Aging Committee Pledges to Fight Age Discrimination in Employment

At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.

Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA,  also acknowledged the upcoming 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.

Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964.  Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of  discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.

 “For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”

The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill  has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”

A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.

As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court.  In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.

According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.

Financial need is by far the most important reason that workers aged 45-74 work – AARP.

The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.”  The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force.  The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.

Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”

Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s  after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”

Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.

Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.